General Terms and Conditions

1. General

The following General Terms and Conditions ("GTC") apply to the provision of services by Musceteers IT GmbH, Mariendorfer Weg 39B, 12051 Berlin, (hereinafter "Musceteers") to its corporate Customers (hereinafter "Customer"). Our GTC in their respective current version shall also apply to all future business relations, even if they are not referred to again in detail.

Objections as well as deviating terms and conditions of purchase are hereby contradicted. Deviations from these GTC shall only become an effective part of the agreement if they are expressly agreed in writing with Musceteers.

2. Offers and Contracts

Offers by Musceteers are always subject to change. An effective agreement (hereinafter also referred to as “Individual Contract") is concluded when Musceteers confirms it in writing, or when Musceteers begins its performance.

3. Services

3.1Musceteers provides services in the field of information technology (IT), in particular the operation of IT systems on behalf of the Customer including implementation, maintenance, care and support as well as consulting services. The specific services are agreed with the Customer in Individual Contracts.

3.2 Musceteers is available on workdays from Monday to Friday between 8am and 6pm. The provision of services outside this period requires a separate agreement. Specific service levels can particularly be agreed upon for availability and response times. The service levels define the service owed. They do not constitute a guarantee within the meaning of §§ 443, 444 or 639 of the German Civil Code (BGB), and they do not constitute a stricter liability pursuant to §§ 280 para. 1 sentence 2, 276 of the German Civil Code (BGB). Service performance within the agreed service levels shall be deemed to have been provided in accordance with the contract.

3.3 Musceteers is not responsible for functionality and operability of third-party systems and software.

3.4 Musceteers undertakes to protect any access data provided by the Customer to the Customer's systems and to third-party systems from unauthorized access by third parties.

3.5 Insofar as a granting of rights is required, Musceteers grants the Customer a simple, non-transferable, permanent right to use the contractual services for its own business purposes. The grant of additional rights is to be made separately and in writing.

3.6 Deadlines are considered non-binding targets unless they are expressly agreed as fixed dates.

3.7 Musceteers may also have rights and obligations arising from the contractual relationship exercised by suitable third parties without this releasing us from our responsibility. Under these conditions, the customer hereby agrees to such an assumption of contract. 

4. Cooperation Obligations by Customer

4.1 Depending on the specific service, the cooperation of the Customer is required for the proper and timely provision of the service. The Customer shall support Musceteers to a reasonable extent in the performance of the service. Typically, such cooperation obligations may include, for example:

(a) If the Customer provides Musceteers with software or other protectable works of third parties, the Customer shall acquire the rights of use required for the intended use by Musceteers and, if applicable, by subcontractors, and shall grant such rights accordingly. The Customer shall ensure that the use of the provided software or works by Musceteers or its subcontractors for the contractual purposes does not infringe any rights of third parties.

(b) The Customer shall provide the necessary information, documents, access data and user accounts required for the provision of the services.

(c) The Customer shall ensure that its other service providers and contractors cooperate with Musceteers to the extent necessary, in particular if interfaces exist to systems or to areas of responsibility of these other service providers or contractors.

(d) The Customer shall ensure that Customer contact persons are available to the required

extent, provide the required information and cooperate appropriately with Musceteers in the performance of the services.

(f) The customer is responsible for ensuring that an up-to-date and appropriate data backup is carried out in a suitable form and that a prompt and economically reasonable recovery of lost data is guaranteed. In particular in the case of new installations and before the start of maintenance and repair work, the customer must carry out a data backup in his own interest. However, we will generally point out when a data backup is necessary.

4.2 If the obligations to cooperate are not met, deadlines for the performance of services may be postponed by a reasonable period, taking into account an additional lead time for Musceteers, if necessary.

5. Pricing and Payment

5.1 The remuneration of Musceteers shall be agreed in the respective Individual Contract. Prices are exclusive of value added tax at the statutory rate. A quarter of the hourly rate is charged for every 15 minutes or part thereof.

5.2 Expenses, travel costs and out-of-pocket expenses will be reimbursed by the Customer against proof.

5.3 Objections to statements of expenses must be communicated by the Customer within 14 days, otherwise the statements of expenses shall be deemed approved. Objections do not suspend the due date of the remuneration for the undisputed services.

5.4 Invoices are payable within 10 days. Recurring services are invoiced monthly in advance. All other services are invoiced by Musceteers at the end of the month.

6. Defects

6.1 The Customer will notify Musceteers of any malfunctions and defects in writing without delay. The notification must contain a sufficiently concrete description of the malfunction or defect. The correction of defects requires that the malfunction or defect can be reproduced or reconstructed. If obvious defects are not notified within a period of 14 days, the Customer may no longer assert warranty claims.

6.2 In all other cases, defects will be remedied by Musceteers at its own discretion either within a reasonable period, or the service will be provided again free of defects (supplementary performance, German: Nacherfüllung).

6.3 If the supplementary performance fails, is unreasonably delayed, or is unjustifiably refused by Musceteers, the Customer may, at its discretion, rescind the concerned performance or reduce payment. Subsequent performance shall be deemed to have failed at the earliest after the three attempts by Musceteers.

6.4 The Customer has no claims for defects due to faults caused by the Customer's own misconduct.

caused by the Customer himself. Claims are likewise excluded insofar as the Customer itself or a third party has modified the object of performance, unless the Customer proves that the defect already existed irrespective of such modification.

6.5 Statements by Musceteers regarding the services are to be understood as technical description of the services and not as guarantee of quality or durability in the meaning of §§ 443, 444 and 639 BGB or any other promise of an independent guarantee. Furthermore, they do not constitute a stricter liability according to §§ 280 para. 1 sentence 2, 276 BGB.

6.6 Claims for defects shall become statute-barred within one year from the statutory commencement of the limitation period.

7. Liability

7.1 Claims for damages and reimbursement of expenses of the Customer against Musceteers, irrespective of their legal basis, and particularly due to defects, breaches of contract or from tort, are excluded, unless they are due to intent or gross negligence on the part of Musceteers, its legal representatives, executive employees or other vicarious agents.

7.2 Musceteers does not assume any stricter liability in the meaning of § 276 BGB. Musceteers assumes no strict liability (German: verschuldensunabhängige Haftung), in particular no guarantee of quality or durability in the smeaning of §§ 443, 444 and 639 BGB (German Civil Code) or independent guarantee promises.

7.3 If a negligent breach of a material contractual obligation leads to damage to property and/or financial loss, the amount of the claim for damages shall be limited to the damages typical for the type of contract and foreseeable at the time of the conclusion of the contract. “Essential Contractual Obligations” are those that characterize the fulfillment of the contract and on whose fulfillment the Customer may rely.

7.4 Liability for loss of data shall be limited to the typical recovery costs that would have been incurred if back-up copies had been regularly and in accordance with the risk by Customer.

7.5 Musceteers is not liable for indirect damage, consequential damage or loss of profit.

7.6 If the customer is responsible for the data backup, we shall only be liable for the loss of data in the event of intent and gross negligence and only for the effort required to restore the data if the customer has properly backed up the data.

7.7 The limitations of liability pursuant to the preceding paragraph shall not apply in the event of injury to life, body or health, in the event of fraudulent conduct, the express assumption of a guarantee or a procurement risk, in the absence of a warranted characteristic, the breach of an Essential Contractual Obligation and in those cases in which Musceteers is subject to mandatory statutory liability.

8. Term & Termination

The term and notice periods of Individual Contracts are stipulated in the Individual Contracts. If no provision for termination has been made for a continuous service within an Individual Contract, a notice period of four weeks to the end of the month shall apply.

The right of both parties to terminate Individual Contracts for cause in accordance with the statutory provisions shall remain unaffected.

9. Confidentiality and Data Privacy

9.1 The Parties undertake to treat as confidential any information about the other Party and its affiliated companies ("Confidential Information") of which they become aware in connection with this agreement and the Individual Agreements as well as their execution, to protect such information against unauthorized access by third parties and, in particular, not to disclose such information to third parties without the consent of the other Party. The Parties shall use Confidential Information of the other Party exclusively for the purpose of implementing this Master Agreement as well as the Individual Agreements.

9.2 The disclosure of Confidential Information to third parties is permissible insofar as this is necessary for the necessary for the performance of the contract. The parties shall ensure that this Confidentiality Obligation is also observed by the third parties engaged by them. Subcontractors shall be bound to confidentiality in writing and in a manner comparable to the above provision.

9.3 The confidentiality obligation shall not apply to such information of the other Party (a) which was already known to a Party prior to disclosure by the other Party, (b) which is publicly known or becomes publicly known without a breach of this Clause, (c) which has been developed independently by a Party without the use of Confidential Information of the other Party independently of this Master Agreement and the Individual Agreements or (d) which has been disclosed to a Party by a Third Party.

9.4 Each party may disclose Confidential Information to third parties to the extent that it is required to do so by law or by orders of governmental bodies; the other party shall be informed thereof as early as possible and in advance, to the extent permitted by law.

9.5 The confidentiality obligations pursuant to this clause 9 shall apply for three years beyond the end of the contract. Regarding personal data, the confidentiality obligations pursuant to this Section 9 shall apply without time limit.

9.6 Insofar as personal data are processed, the Customer is the responsible party and Musceteers is the processor. The corresponding obligations of the Parties are set forth in a separate agreement on commissioned data processing.

10. Miscellaneous

10.1 German law shall apply. The place of jurisdiction is agreed to be the registered office of Musceteers. Musceteers is also entitled to take legal action at the Customer's place of business.

10.2 Should a provision or future provision of these GTC or of an Individual Contract be or become void in whole or in part, or should a loophole become apparent, this shall not affect the validity of the remaining provisions. In place of the invalid provision or to fill the gap, the valid and feasible provision that comes closest to the presumed intent of the parties in legal and economic terms shall be deemed agreed with retroactive effect.